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Hints in New Scalia Book of Views on Health Law

WASHINGTON — With a Supreme Court decision on the fate of President Obama’s health care law expected in the next two weeks, every wisp of a hint about the justices’ thinking is getting the scrutiny usually reserved for CAT scans.

Justice Antonin Scalia picked the right moment, then, to deliver more than 500 pages of hints, in a book to be published next week. He wrote it with Bryan A. Garner, and it is an overview and summation of the justice’s approach to making sense of statutes and the Constitution.

It is also studded with telling asides and intimations about past and future decisions.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

“Worse still,” he writes, he “does not swear that the opinions that he joins or writes in the future will comply with what is written here,” for the first two reasons “or because a judge must remain open to persuasion by counsel.”

Mr. Garner, a prominent lexicographer and authority on usage, also collaborated with Justice Scalia on an earlier book, “Making Your Case: The Art of Persuading Judges.” He said the timing of the new one was happenstance.

“The book was originally scheduled to be published last fall,” Mr. Garner wrote in an e-mail, “but it’s been delayed twice so that Justice Scalia and I could sort through some gnarly complexities.”

Photo

Justice Antonin Scalia’s book comes out as the nation awaits a crucial ruling from the high court on the health care law.Credit
Jim Watson/Agence France-Presse — Getty Images

The new book, “Reading Law: The Interpretation of Legal Texts,” is lucid and accessible, though only the name of one of its authors makes it of interest to the general reader. It is basically a contribution to the field of “statutory construction,” and it is mostly a series of short essays elaborating on principles meant to guide lawyers and judges in interpreting law and other legal texts. Lawyers call these principles canons of construction.

For instance: “Words must be given the meaning they had when the text was adopted.”

Or, and perhaps more interesting: “A statute presumptively has no extraterritorial application.” This will please the defendants in a case to be reargued next term on the question of whether foreign oil companies may be sued under a federal law for complicity in human rights abuses abroad.

Or: “The word person includes corporations and other entities, but not the sovereign.”

The First Amendment rights of corporations figured in the Supreme Court’s 2010 decision in Citizens United, but Justice Scalia’s point here concerns statutes and not the Constitution. He does mention Citizens United in passing, commenting that the law it overturned had called for fast judicial review. That was an indication, Justice Scalia says, that Congress knew the law was of “questionable constitutionality.”

Another canon may bear on the other blockbuster case still in the Supreme Court pipeline, the administration’s challenge to a tough Arizona immigration law on the ground that it conflicts with federal immigration laws and policies. That canon says that “a federal statute is presumed to supplement rather than displace state law.”

In general, Justice Scalia writes, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, he writes, illegitimate.

To show that textualism is a neutral principle rather than “a technique for achieving ideological ends,” Justice Scalia lists some of the opinions he has written and joined that, thanks to a textualist approach, are at odds with his policy preferences as “a confessed law-and-order social conservative.”

Among them, he says, were opinions favoring criminal defendants at trials and in sentencing proceedings, plaintiffs seeking punitive damages and people prosecuted for burning the American flag.

Justice Scalia acknowledges one powerful limit on his commitment to textualism. Court precedents must ordinarily be respected even when they were based on misguided readings of the relevant texts, he writes, under the doctrine of “stare decisis,” which is (according to Mr. Garner’s “Dictionary of Modern Legal Usage”) Latin for “to stand by things decided.”

But there are exceptions to the doctrine, Justice Scalia writes. For instance, he says, “the Supreme Court should not give stare decisis effect to Roe v. Wade,” the 1973 decision that identified a constitutional right to abortion.

That may sound definitive, but “Reading Law” opens with a little disclaimer, a bit of legalese of the sort you see sometimes see as a DVD is getting ready to play.

“The views expressed in this book are those of the authors as legal commentators,” the disclaimer says. “Nothing in this book prejudges any case that might come before the United States Supreme Court.”

A version of this article appears in print on June 16, 2012, on page A12 of the New York edition with the headline: Hints in New Scalia Book Of Views on Health Law. Order Reprints|Today's Paper|Subscribe